Trespass, in its widest sense, signifies any transgression or offence against the laws of Nature, of society, or of the country in which we live, whether relating to a man’s person or to his property. But the most obvious acts of trespass are
Trespass to land is the wrongful and unwarrantable entry upon the soil or land of another person. If a man's land is not surrounded by an actual fence, the law encircles it with an imaginary enclosure, to pass which is to break and enter his close. The mere act of breaking through this imaginary boundary constitutes a cause of action, as being a violation of the right of property, although no actual damage may be done. Every trespass upon land is, in legal parlance, an injury to the land, although it consists merely in the act of walking over it, and no damage is done to the soil or grass. Every injury to the possession of the occupier is, in principle, an injury to the property; and therefore, if a man is unlawfully turned out of his dwelling house, that amounts, in point of law, to an injury to the dwelling house.1)
To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage, nor the breaking of an enclosure is necessary. The trifling nature of the trespass is no defence, and the maxim de minimis non curat lex has no application to the law of trespass. Every invasion of private property, be it ever so minute, is a trespass/2)
Entry is essential to constitute a trespass. It may be either actual or constructive. Constructive entry may be described as every interference with the land of another, e.g., throwing stones or materials over a neighbour's land.
Throwing stones, rubbish, or materials of any kind, on the land of another, is a trespass.3) To pour water out of pail into another man's yard, or to fix a spout so as to discharge water upon another's land, or to suffer filth to ooze through a boundary wall and to turn over another's close or yard without his leave or permission, is a trespass; unless a right of way over the adjoining close, or a right to discharge water upon it, or a right for the passage of waste water and refuse through it has been gained.4) Driving nails into another's wall, or placing objects against it, are trespasses5) so is fox-hunting across land against the will of the owner.6)
The plaintiff was possessed of land which was crossed by a highway. A trainer of race-horses had agreed with the plaintiff for the use of some of his land for the training and trial of race-horses. A view of the laud so used could be obtained from the highway on the plaintiff's laud. Defendant, a proprietor of a publication which gave accounts of the doings of race-horses in training, walked backwards and forwards on a portion of the highway on the plaintiff's land about fifteen yards in length for an hour and a half, watching and taking notes of the trials of race-horses on the plaintiff's land. In an action for trespass it was held that the defendant had exceeded the ordinary and reasonable user of a highway as such to which the public are entitled, and was liable for trespass.7)
Where one parts with the right to the surface of land, retaining only the mines, he cannot maintain an action for trespass to the surface, because he is not in possession of it; but he may for a trespass to the subsoil, as by digging holes, etc.
Apprehended trespass not actionable: An apprehended trespass furnishes no ground of action.8)
If a man throws a heap of stones, or builds a wall, or plants posts of rails, on his neighbour's land, and there leaves them, an action will lie against him for the trespass; and the right to sue will continue from day to day, till the incumbrance is removed. An action may be brought for the original trespass in placing the incumbrance on the land, and another action for continuing the thing so erected; for the recovery of damages in the first action, by way of satisfaction for the wrong, does not operate as a purchase of the right to continue the injury.9) But, where the injury is not of a continuing nature, and the damages which flow therefrom, when they accrue, have accrued once for all, then the recovery of judgment in a previous action is a good bar.
Joint-tenants or tenants in-common, can only sue one another in trespass for acts done by one inconsistent with the rights of the other.10) Such acts are, for example, destruction of buildings, carrying away of soil, or expulsion of the other or his servant off the land, or out of the house holder in common.
But it is not a trespass if one tenant-in-common acts and carries away in due season the whole produce of the common property, but the remedy of the other tenant-in common is a suit for an account.11)
A Court of Equity will not interfere where a tenant-in common acts reasonably for the purpose of enjoying the property held in common in any way in which an owner can enjoy such property without injury to his co-parcener, but the case is different where there has been a direct infringement of a clear and distinct right.
Where a joint-owner or co-sharer has erected a building on joint land the Court can order its demolition.12) But, where the act complained of is not proved to be destructive or detrimental to the enjoyment of the joint property, the Court will refuse to order its demolition (Nabin Chandra v. Mahes Chandra
Trespass by a man's cattle is dealt with similarly to trespass committed by himself. In the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass.13) If a man's cattle, sheep, or poultry, or any animals in which the law gives him a valuable property, trespass on another's close, the owner of the animals is responsible for the trespass and consequential damage, unless he can show that his neighbour was bound to fence and had failed so to do.14) But, if no such duty to repair exists, the owner of cattle is liable for their trespasses even upon unenclosed land15) and for all naturally resulting damage. So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, the trespass is complete. The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven; in such case the owner is liable only on proof of negligence.16)
Where the defendant's horse injured the plaintiff's mare by biting and kicking her through an iron fence belonging, to the defendant which separated the defendant's land from the plaintiff's, it was held that there was a trespass for which the defendant was liable apart from any question of negligence.17)
Whenever two persons have adjoining fields with no hedge or fence between them, each must take care that his own beasts do not trespass on his neighbour's field.18) Where the owner of a horse negligently allowed his horse to stray on the high road, it was held that the owner would be responsible for all such damage as in the ordinary sequence of events might be expected to occur therefrom, such as the horse's walking into a neighbouring pasture, and consuming the grass there, or wandering into a cornfield and trampling down the corn, but not for a kick to a child on the road, unless it could be shown that the horse was naturally of a vicious disposition.19)
Where cattle affected with a contagious disorder trespassed upon adjoining pasture and infected other cattle there with the disease, it was held that the owner of the trespassing beasts was responsible for the damage arising from the spread of the disorder, as well as for the injury to the grass and herbage.
If a man's dog goes into his neighbour's garden, and spoils and injures his crops, no action will lie, unless the dog is of a peculiarly mischievous disposition; because a man is not considered to have the same valuable property in a dog as in cattle and sheep.20)
Indian case: In a suit in which it is proved that defendants maliciously and from gross negligence allowed their cows to trespass on plaintiff's lands, and to destroy the indigo plants thereon, knowing the value of the crops to the plaintiff, it was held that the case was one of tort in which, the wrong being deliberate and malicious, the plaintiff was entitled by way of damages, not to the mere value of the growing plants destroyed as the actual loss sustained, but to substantial damages sufficient to compensate the plaintiff the loss of profits which would have been obtained from the indigo plant.21)
The person whose land is trespassed upon may;
To maintain an action for trespass, a plaintiff must prove that he was in possession, either actual or constructive, at the time of trespass. A mere interesse termini is not sufficient.22) Constructive possession means, either the possession of an agent or servant, or an immediate right to possess, or possession conferred by law in certain cases independently of any physical prehension or transfer.23) Possession is the great requirement, and if the plaintiff prove that he is in possession, that makes out a sufficient prima facie case on which he can recover. In such an action not only is it not incumbent on the plaintiff to show a title, but it is no answer for the defendant to show that the title and right to possession is in another person; jus tertii (the right of a third person) is no defence to the action, unless the defendant can show that the act complained of was done by the authority of the true owner.24) Nor does it matter how recently the possession was acquired.25) Where a person is in possession of land, the onus lies upon the prima facie trespasser to show that he is entitled to enter.26)
A person entitled to the possession of lands or houses cannot bring an action of trespass against a trespasser until he is in actual possession of them.27) But when he has once entered, he acquires the actual possession, and such possession dates back to the time of the legal commencement of his right of entry, and he may, therefore, maintain actions against intermediate and then present trespassers.28)
The owner who has parted with possession in favour of a tenant or lessee, cannot maintain an action for trespass; he is, however, entitled to sue where an injury is done to his reversionary estate, provided that such injury is of a permanent nature, and deteriorates the actual marketable value of the property.29) In such cases, the tenant is entitled to sue in respect of the immediate injury, and the reversioner in respect of ' the diminished saleable value of the property.'
If two persons are in possession of land, each asserting his right to it, then the person who has the title to it is to be considered in actual possession and the other person is a mere trespasser.30)
Indian law: The law of England that a landlord who has parted with his possession to a tenant cannot sue in trespass for damage to the property, unless the wrongful act complained of imports a damage to the reversionary interests, does not apply to landlords in India.31) Any one of several joint-tenants of land may sue to eject a trespasser. The consent of one joint tenant to the possession of a trespasser does not make him the less a trespasser with regard to other joint tenants.32)
The person in possession may use force to keep out a trespasser; but if the trespasser has succeeded in obtaining possession the right owner cannot use force to put him out, but must appeal to the law for assistance.
A mere trespasser cannot, by the very act of trespass, immediately, and without acquiescence on the part of the land-owner, become possessed of the land, and he may consequently be expelled by main force; but if a landowner sleeps upon his rights, the other will gain possession, and cannot be forcibly ejected.33)
A person is justified in removing a trespasser from his lands, provided he first requires him to leave and in removing him he does not use a greater amount of force than is necessary under the circumstances.
In actions for injuries to land, the measure of damages is the diminished value of the property, or of a plaintiff's interest in it, and not the sum which it would take to restore it to its original state. The damages will vary considerably, according to the plaintiff's interest in the land. This is obviously just, both to prevent the plaintiff getting extravagant recompense when his interest is on the point of expiring, or very remote, and to pre vent the defendant being forced to pay for the same damage several times over. The same act may give rise to different injuries; the tenant may sue for the injuries to his possession and the landlord for the injuries to his reversion. And so where several persons are entitled in succession, as tenant for life, in tail, in fee, each can only recover damages commensurate to the injury done to their respective estates.34)
As to prospective damages the rule is that where such prospective loss may be the subject of a fresh action when it occurs, it cannot be allowed for beforehand and vice versa. The former is the case when the act complained of is a continuing trespass upon the plaintiff's land, as for instance, an unauthorized erection upon it35); or is a continuing nuisance to it.36) The contrary rule obtains where the original wrong consists of a single injury or act of destruction; for where the defendant had made an aperture in the plaintiff's mine, through which the water kept continuously flowing into, and drowning it, it was ruled that no fresh action could be brought for loss accruing subsequently. The damages in the first action for making the aperture must be taken to have been a full compensation not only for the act, but for all the consequences which could arise from it.37)
Consequential loss resulting naturally from acts which are in themselves part of the trespass, may be proved as substantial damage, though it might be sued for as a distinct ground of action; for instance, infection caught by plaintiff's cattle from the entry of diseased cattle into his land.38)
Acts of insult and malice are matters of aggravation, for which substantial or exemplary damages should be given.39) The owner out of possession can sue the trespasser for mesne profits without suing for possession.40)
Where the defendants trespassed on the plaintiff's land by tipping spoil thereon from their colliery, it was held that the amount of damages was not to be assessed by ascertaining merely the diminution in value of the plaintiff's land, but that the principle of way-leave cases41) applied : namely, that if one person without leave of another uses the other's land for his own purposes he ought to pay for such user; and that, therefore, as to so much of the land as was covered with spoil, the value of the land for the purpose for which it was used by the wrong-doers ought to be taken into account, and that as to the rest of the land the measure of damages was the diminution of the value thereof to the plaintiffs by reason of the wrongful acts of the defendants.42)
Indian case: In a suit brought against the Secretary of State by the plaintiffs the landlords for damages for wrongful invasion of, and injury done to, their lands while in the possession of their tenants by the orders of the chief local officer. Held, that substantial, but not exemplary or vindictive, damages should be awarded, because damages recovered from the Secretary of State are in truth recovered from the tax-payer who has done the plaintiffs no wrong and the plaintiffs not suing the actual wrong doers did not leave to Government the discretion of determining how far the damages should be borne by their defaulting officer and how far, if it all, borne by the public, and because the tenants who were in possession were not parties to the suit while trespass was primarily an injury to possession.43)
When authority, or license, is given to any one by law to enter upon lands or tenements of any person and he abuses it, he becomes a trespasser ab initio, i.e., the authority or justification is not only determined, but treated as if it had never existed. His misconduct relates back so as to make his original entry tortious. But where authority is not given by law, but by the party, and abused, then the person abusing such authority is not a trespasser ab initio. The reason of the difference being that, in the case of a general authority, or license of law, the law adjudges by the subsequent act with what intention the trespasser entered; but when the party gives an authority or license himself to do anything, he cannot, for any subsequent cause, punish that which is done by his own authority or license. Besides when the authority is conferred by an individual it can be limited or recalled at will, whereas the rights given by law require to be more strictly protected.
Again the abuse necessary to render a person a trespasser ah initio must be a misfeasance and not a nonfeasance.44)
This doctrine has been applied in olden times to the lord of a manor taking an estray45), and to a sheriff remaining in a house in possession of goods taken in execution for an unreasonably long time.46) Other instances of trespassers ab initio are : the lessor who enters to view waste and stays all night; the commoner who enters to view his cattle and cuts demon a tree; and the man who enters a tavern and continues there all night against the will of the landlord.
The leading case of Six Carpenters lays down three points:
Six carpenters entered a tavern “ and did there buy and drink a quart of wine, and then paid for the same.” They then gave a further order for another “ quart of wine and a penny-worth of bread, amounting to 8d.” This order was also fulfilled. For the second supply the men refused to pay. The question was whether this non-payment made their original entry into the tavern unlawful. The Court held that the men did not become trespassers ab initio, because there was a mere non-feasance in refusing to pay.47)
Whenever any wrongful act is necessarily injurious to the reversion to land, or has actually been injurious to the reversionary interest, the reversioner may sue the wrongdoer.48) A reversioner must show that the injury is such as necessarily to damage also his estate, otherwise in fact there is no invasion of his right or interest. A person in possession of property may do wrong by refusing to deliver possession to a person entitled, or by otherwise assuming to deal with the property as owner or adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion.
The owner of a life estate or interest is not allowed to destroy, consume, or otherwise permanently impair the corpus or substance of the subject thing, so as thereby to leave it to the remainderman or the reversioner in a worse state than it would otherwise have been left. He has only an usufructuary property in the thing.
It is, however, important to note the difference between an action for a trespass to land and an action for damage done to the reversion. In the former action special damage need not be proved with a view to supporting it. In the latter action, it must be so; that is to say, a plaintiff suing as reversioner must show that, by the acts complained of, his reversionary estate and interest were depreciated or lessened in value or he must show that the alleged tort was of a kind necessarily calculated to prejudice the reversion.49)
Opening a new door in a house may be an injury to the reversion, even though the house is none the worse for the alteration; for the alteration of property may be injury.50) Obstruction of an incorporeal right, as of way, air, light, water, etc., may be an injury to the reversion.